In an AI-driven world, brand protection and intellectual property rights are evolving rapidly. This article explores the key insights from Lawline’s CLE course, "Make Your Mark: Building a Brand in the Age of AI," presented by Wendy Heilbut and Savannah Merceus of Heilbut LLP, covering trademarks, copyright considerations, and global IP protection strategies.

What Makes a Strong Trademark in the AI Era?

Building a strong brand starts with selecting a legally protectable trademark. The strength of a trademark is assessed based on two factors:

• Conceptual Strength – How unique and distinctive a mark is within the trademark spectrum.
• Commercial Strength – How well the mark is recognized within its industry and marketplace.

Trademark Spectrum and AI’s Influence

Trademarks are categorized based on distinctiveness. Fanciful and arbitrary marks are highly distinctive because they either use invented words or have no direct relation to the product or service. Suggestive marks require a consumer to make a mental connection between the brand and its offerings. Descriptive marks, which explicitly describe the product or service, may only gain protection if they acquire secondary meaning. Generic terms, such as “Computer” for a tech company, cannot be protected as trademarks.

With AI-generated name suggestions, businesses may struggle to ensure uniqueness, as AI models may produce overlapping brand names based on common training data. This could lead to increased conflicts in the trademark registration process, making distinctiveness a greater challenge in the AI era.

How AI is Impacting Trademark Clearance & Prosecution

AI is significantly enhancing the trademark clearance process, allowing for more in-depth searches across various databases to detect conflicts. However, AI’s ability to generate similar brand names poses risks of:

• Higher rejection rates at the USPTO due to increased name similarities.
  
• More frequent opposition filings from existing trademark owners.
  
• Difficulty in establishing distinctiveness, as AI-generated names may reflect common industry themes.

AI-Generated Specimens and USPTO Compliance

Trademark prosecution faces new challenges with AI-generated specimens of use, which provide evidence that a mark is in commerce. The USPTO has flagged concerns over:

• AI-generated fake specimens that do not reflect actual product use.
  
• High-volume, AI-assisted filings leading to fraudulent applications.
  
• Stricter scrutiny by USPTO examining attorneys to detect AI-generated content.
  

Recent disciplinary actions highlight the risks. In re Wei Tao Chen, an attorney was suspended for filing thousands of suspect trademark applications, many containing questionable specimens. Attorneys must now exercise heightened due diligence when submitting evidence of use.

Copyright Considerations in AI-Assisted Brand Creation

AI’s role in brand building extends to content creation, including logos, slogans, and marketing materials. However, copyright law presents unique challenges regarding AI-generated works.

Can AI-Generated Works Be Copyrighted?

The U.S. Copyright Office requires human authorship for copyright protection. AI-generated works may not qualify unless substantial human modification is demonstrated. Key takeaways from recent USPTO guidance include:

• Human contribution must be more than de minimis. Simple AI modifications (e.g., adjusting colors, minor text edits) may not meet the threshold for human authorship.
  
• Disclosures are required when AI assistance is used in copyrighted works.
  
• AI-generated logos and artwork may be difficult to protect under copyright laws, requiring alternative protection under trademark law.

Businesses relying on AI tools for branding must ensure their outputs are legally protectable by incorporating sufficient human creativity.

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Global Trademark and AI Enforcement Trends

Intellectual property offices worldwide are adapting to AI’s impact on branding and trademark law. The UK Intellectual Property Office (UK IPO) conducted a comprehensive review on AI’s influence on intellectual property, emphasizing the importance of ongoing evaluation of trademark and copyright laws. Meanwhile, China’s National Intellectual Property Administration (CNIPA) has implemented strict regulations to combat bad-faith trademark filings, which could be used to target AI-generated mass applications.

Canada’s Intellectual Property Office (CIPO) introduced an AI-powered trademark assessment tool designed to flag application deficiencies at an early stage, allowing for proactive corrections. Similarly, Australia’s IP Office launched TM Checker, an AI-driven tool assisting applicants in assessing the availability of trademarks before filing.

While these AI-driven tools enhance efficiency and streamline administrative processes, they also introduce concerns regarding algorithmic bias and inconsistent examination outcomes across jurisdictions. As AI continues to influence trademark registration and enforcement, legal professionals must stay informed about evolving regulations and procedural changes worldwide.

Best Practices for Brand Protection in the Age of AI

Given the evolving IP landscape, businesses and legal practitioners should adopt the following strategies:

• Choose a strong, distinctive trademark. Avoid overly descriptive or generic AI-generated names.
  
• Conduct thorough clearance searches. Utilize AI-powered tools but apply human judgment to assess results.
  
• Ensure compliance with USPTO specimen requirements. Avoid submitting AI-generated specimens that may be deemed fraudulent.
  
• Verify ownership of AI-assisted branding elements. Ensure contracts with designers specify AI usage and ownership rights.
  
• Monitor global trademark trends. Stay updated on AI-related policies in different jurisdictions.

Key Takeaways

• AI is reshaping brand creation and trademark prosecution, introducing both opportunities and legal challenges.
  
• Distinctiveness and commercial strength remain critical in securing strong trademarks.
  
• AI-generated brand elements face hurdles in copyright protection due to the human authorship requirement.
  
• Regulators worldwide are tightening controls on AI-assisted filings, signaling the need for cautious brand development.
  
• Legal practitioners and businesses must adapt by ensuring compliance with evolving IP standards.

For a deeper dive into AI’s impact on brand protection, watch the full course "Make Your Mark: Building a Brand in the Age of AI," presented by Wendy Heilbut and Savannah Merceus of Heilbut LLP, on Lawline.

The content of this article is provided for informational purposes only and does not constitute legal advice.

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